People v. Dearmond CA3

Filed 4/3/14 P. v. Dearmond CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE,

Plaintiff and Respondent, C072409

v. (Super. Ct. No. 12F02438)

MICHAEL THOMAS DEARMOND,

Defendant and Appellant.

A jury found defendant Michael Thomas Dearmond guilty of second degree robbery (Pen. Code,1 §§ 211, 212.5, subd. (c)) and second degree burglary (§§ 459, 460, subd. (b)).2 The trial court found defendant had a prior serious felony conviction (§§ 667, 1170.12) and had served a prior prison term (§ 667.5, subd. (b)).

1 Undesignated statutory references are to the Penal Code. 2 The jury deadlocked on another count of second degree burglary, a mistrial was declared, and the count was dismissed.

1

Defendant was sentenced to prison for 16 years and was ordered to pay a $3,200 restitution fine pursuant to section 1202.4, subdivision (b), and a $3,200 restitution fine suspended unless parole is revoked pursuant to section 1202.45. On appeal, defendant contends imposition of a restitution fine in excess of the $240 statutory minimum violated his rights to a jury trial and due process. We reject defendant’s contention and affirm the judgment. FACTS The facts of defendant’s offenses are not necessary to decide defendant’s challenge to the restitution fine. At sentencing, the trial court ordered defendant to pay a restitution fine in the amount of $3,200 pursuant to section 1202.4 as recommended in the probation report. As the parties recognize, the court did not make any specific findings regarding this fine nor did it state for the record its reasons for imposing the fine in that amount. DISCUSSION Defendant contends the trial court’s imposition of a restitution fine greater than $240 pursuant to section 1202.4, subdivision (b)(1), violated his rights to a jury trial and to due process under the Sixth and Fourteenth Amendments. We are not persuaded. In 2012, when the crimes were committed and defendant was sentenced, section 1202.4, subdivision (b), provided: “In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record.” In the case of a felony conviction, the minimum restitution fine was $240 as of January 1, 2012, and the maximum fine was $10,000. (§ 1202.4, subd. (b)(1); Stats. 2011, ch. 358, § 1.) The fine was to “be set at the discretion of the court and commensurate with the seriousness of the offense.” (Ibid.) The court “may determine the amount of the fine as the product of the minimum fine pursuant to paragraph (1) multiplied by the number of